Vinod v. Abdul Salam, Rasheed, and The Branch Manager, National Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 ``` ``` MACA NO. 2750 OF 2015 ``` ``` [AGAINST THE AWARD DATED 02.03.2012 IN OP(MV)NO.469/2009 ON THE ``` ``` FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KASARAGOD] ``` ## `APPELLANT/PETITIONER:` ``` VINOD, S/O.DAMADHARAN, AGED 54 YEARS, RESIDING AT VINU NILAYAM, KOYIPPADY BEACH, KUMBLA, KASARAGOD DT. ``` ``` BY ADVS.SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH ``` ## `RESPONDENTS/RESPONDENTS:` - `1 K.ABDUL SALAM, S/O.MUHAMMED ALAVI, AGED 33 YEARS, RESIDING AT AJMAL MANZIL, ARANGADI, NEELANKARA, KANHANGAD VILLAGE, KASARAGOD-671315.` - `2 RASHEED, S/O.KUNHABDULLA, HOUSE NO.1/10(1/21), SAJID MOULA MANZIL, BELLA BEACH, KANHANGAD-671315, KASARGOD DT.` ``` 3THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., HIGH LANE PLAZA, P.B.NO.39, M.G.ROAD, KASARGOD-671121. ``` ``` BY ADV SRI.P.JACOB MATHEW SRI.MATHEW JACOB (SR.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2750 OF 2015 ``` ``` -2- ``` ## `JUDGMENT` ``` This Appeal has been filed by a person who was injured in a road accident on 21.10.2008, when the motor cycle on which he was travelling was hit by the offending vehicle in a rash and negligent manner. The appellant suffered injuries and had to undergo treatment; and he thereupon filed OP(MV)No.469/2009 before the Motor Accidents Claims Tribunal, Kasaragod (‘Tribunal’, for short), seeking a compensation ``` ``` of Rs.8,42,000/-, limited to Rs.7,00,000/-, but ``` ``` which has been allowed only to an extent of Rs.4,00,000/-. He thus assails this Award as being inadequate. ``` ``` 2.Sri.Abdul Raoof P. - learned counsel for ``` ``` the appellant, pointed out that the Tribunal has only adopted the notional income of his client as being Rs.4,000/-, though he had claimed Rs.5,000/-. He argued that, going by ``` ``` MACA NO. 2750 OF 2015 ``` ``` -3- ``` ``` Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], this amount is certainly allowable; and further that, since his client suffered 72% ``` ``` disability to his lower limb, the Tribunal ought ``` ``` to have adopted that figure and granted him ``` ``` future prospects of 25% also, especially because ``` ``` he was a fisherman, who has now been incapacitated from continuing with such avocation. ``` ``` 3.Sri.Abdul Raoof P. concluded his ``` ``` submissions saying that the compensation awarded by the Tribunal under the various other heads, including“PainandSuffering”,“Extra ``` ``` Nourishment” and “Bystander Expenses” is extremely low and that it requires to be enhanced suitably. ``` ``` 4.Sri.Mathew Jacob – learned Senior ``` ``` Counsel, instructed by Smt.Preethy Nair ``` ``` MACA NO. 2750 OF 2015 ``` **==> picture [22 x 8] intentionally omitted <==** ``` appearing for the Insurance Company, on the other hand, asserted that the Tribunal has erred in no manner in having fixed the computation, particularly because the permanent disability suffered by him, as per Ext.X2 Certificate, is only to the right lower limb. He, therefore, prayed that his Appeal be dismissed. ``` ``` 5.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 6.On the question of notional income, I ``` ``` find complete favour with the appellant because, as rightly argued by his learned counsel - Sri.Abdul Raoof P., inRamachandrappa (supra), the minimum figure to be reckoned in the case of a person with unascertainable income in the year ``` ## `MACA NO. 2750 OF 2015` ``` -5- ``` ``` 2008 – when the accident occurred - is Rs.6,500/-. Since he has claimed only Rs.5,000/-, I see no reason why the Tribunal ``` ``` should have denied it. ``` ``` 7.Going by the medical evidence on record, ``` ``` particularly Ext.X2, which is the Medical Certificate, the District Disability Board, ``` ``` Kanhangad,hascertifiedhispermanent disability to be 72% in relation to the right lower limb. The Tribunal has also recorded that ``` ``` the appellant was walking with an aid and that he is unable to bend the right lower limb. ``` ``` Obviously, as a fisherman, he would be unable to ``` ``` work any further, and he would have to look for ``` ``` other avocations. ``` ``` 8.In such perspective, I fail to fathom how the Tribunal could have assessed the whole body disability at a mere 35%, because it is without doubt that the appellant will now be ``` ``` MACA NO. 2750 OF 2015 ``` ``` -6- ``` ``` confined to a job which will require him to sit and not exert his limbs in any manner. I, therefore, propose to revise this to be 50%; and obviously, therefore, he will be entitled to future prospects also, which I propose to fix at ``` ``` 10%. ``` ``` 9.That said, Ext.A9 - Discharge Summary and the other medical evidence, including the Wound Certificate, show that the appellant had suffered fractures of leg bones (both tibia and fibula) and foot bones, along with fracture of thigh bone. He also suffered lacerations and swelling; and it is thus indubitable that he had to undergo a lot of trauma and pain, during his treatment and thereafter. ``` ``` 10.I am, therefore, without doubt that the ``` ``` compensation awarded by the Tribunal under the heads “Bystander Expenses”, Extra Nourishment” and “Pain and Suffering” ought to have been ``` ``` MACA NO. 2750 OF 2015 ``` ``` -7- ``` ``` more than what has been granted. I, therefore, propose the compensation for “Bystander ``` ``` Expenses” to be Rs.250/- per day and that for ``` ``` “Extra Nourishment” to be Rs.200/- per day. Reckoning 21 days of hospitalization, as is ``` ``` admitted, the sums as granted by the Tribunal, ``` ``` will have to be revised appositely. ``` ``` 11.Coming to the question of “Pain and ``` ``` Suffering” for the same reasons I have recorded ``` ``` above, I propose Rs.40,000/-, instead of ``` ``` Rs.20,000/- as now awarded by the Tribunal. ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` **==> picture [377 x 12] intentionally omitted <==** ``` permanent disability is revised to Rs.4,29,000/- (Rupees four lakhs, twenty nine thousand only), ``` ``` reckoning the notional income of the appellant to be Rs.5,000/- per month, with 10% future prospects added to it and the percentile of ``` ``` MACA NO. 2750 OF 2015 ``` ``` -8- ``` ``` permanent disability being taken as 50. ``` ``` (b)The compensation under the head ``` ``` “Bystander Expenses” is enhanced to Rs.5,250/- ``` ``` (Rupees five thousand two hundred and fifty ``` ``` only), reckoning the per day expenses to be Rs.250/-. ``` - `(c) The compensation under the head “Extra` ``` Nourishment” is enhanced to Rs.4,200/- (Rupees ``` ``` four thousand two hundred only), granting ``` ``` Rs.200/- per day as expenses. ``` - `(d) The compensation under the head “Pain` ``` and Suffering” is enhanced to Rs.40,000/- ``` ``` (Rupees forty thousand only), from Rs.20,000/- ``` ``` as awarded by the Tribunal. ``` - `(e) In all other heads, the compensation` ``` awarded by the Tribunal will remain intact. ``` ``` Needless to say, theappellant will be at ``` ``` full liberty to recover the compensation, as enhanced by this Court from the Insurance ``` ## `MACA NO. 2750 OF 2015` ``` -9- ``` ``` Company, along with interest at the rate of 8%, as awarded by the Tribunal, from the date of claim until it is recovered.He will also be ``` ``` entitled to proportionate costs on the enhanced ``` ``` amount as ordered by the Tribunal. ``` ``` It goes without saying that, while calculating the interest as afore, a period of 1212 days - being the delay in filing this ``` ``` Appeal – shall stand excluded. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance ``` ``` Company before the Tribunal, within a period of ``` ``` two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ## `JUDGE` ``` akv ```